United States of America v. andrzej Bienkowski.

May 2, 2013

UNITED STATES OF AMERICA,v.ANDRZEJ BIENKOWSKI. DEFENDANT.

The opinion of the court was delivered by: William J. Martini, U.S.D.J.

RESTITUTION ORDER

THIS MATTER comes before the Court on the Government's request that Defendant be ordered to pay restitution to: (1) American Road Services Company in the amount of $109,097.15; and (2) Toyota Motor Insurance Company in the amount of $21,994.54 (collectively totaling $131,091.69), pursuant to 18 § U.S.C. 3664, et seq. (the "Restitution Request"). Presently, the Court will grant the Government's Restitution Request. In making this determination, the Court notes the following:

(2) On July 26, 2012, Defendant was sentenced to 13 months' imprisonment with three years' supervised release, with restitution to be determined at a later date (Id.);

(3) On February 26, 2013, the Court held a restitution hearing, and as a result, required the Government to provide additional proofs in support of its Restitution Request;

(4) Accordingly, on March 4, 2013, the Government provided supplemental documentation indicating: (i) that the amount sought in the Restitution Request is derived from the financial losses related to five specific motor vehicles (collectively "Vehicles"; individually Vehicles 1, 2, 3, 4, and 5, respectively);*fn1 and (ii) is derived from claims for restitution submitted by American Road Services Company and Toyota Motor Insurance Company (the "Insurers"),*fn2 who provided insurance to the owners of those Vehicles (the "Insured") for theft and damage to those Vehicles (Gov't Mar. 4, 2013 Supplemental Restitution Papers);

(5) That as part of his Plea Agreement, Defendant explicitly acknowledged that Vehicles 1, 2, 3, and 4 were part of a non-exclusive list of property which "constitute[s] or is derived from his commission of trafficking in certain motor vehicle or motor vehicle parts in violation of [18 U.S.C. § 2321]," see Plea Agreement 3, ECF No. 14 and Gov't Mar. 4, 2013 Supplemental Restitution Papers, and that Defendant does not contest that Vehicle 5 is similarly related to that conviction;

(6) That in support of its Restitution Request, the Government has attached certifications from representatives of the Insurers demonstrating how the Insurers calculated the amount of restitution sought for each Vehicle (the "Insurer's Certifications");*fn3

(7) That for all five Vehicles, the Insurer's Certifications expressly include the claim reimbursement amount the Insurer paid to each individual Insured, as well as deductible amounts paid; and in case of Vehicles 2, 3, and 4, the salvage amounts recovered by the Insured which offset that total loss.

(8) That in Defendant's March 27, 2013 letter written in response to the Government's Supplemental Restitution Papers, Defendant asserts that the documentation submitted by the Government is insufficient to support the amount sought in its Restitution Request because it does not contain sufficient evidence -- such as copies of the checks for reimbursement written to the Insureds -- which adequately supports the Insurers' claimed losses.*fn4 (Def.'s Mar. 27, 2013 Letter).

(9) That as a general matter: (1) victims are entitled to recover for their losses regardless of their insurance coverage; and (2) insurance companies are entitled to recover for the amounts paid on claims. See, e.g. United States v. Searing, 250 F.3d 665, 668 (8th Cir. 2001) (citing 18 U.S.C. §§ 3664(f)(1)(B), 3664(j)(1));

(10) That the burden of demonstrating the amount of such losses is on the Government, and any dispute regarding the proper amount is to be resolved by a preponderance of the evidence. United States v. Vitillo, 490 F.3d 314, 330 (3d Cir. 2007) (citing 18 U.S.C. § 3664(e)).

(11) That in light of these considerations, and based on the Government's aforementioned evidentiary submissions -- which, admittedly, do not include copies of reimbursement checks sent to the Insureds, but do include certifications from representatives of the Insurers certifying the amounts paid to those Insureds based on claims they submitted for the losses incurred to their respective Vehicles -- the Government has established, by a preponderance of the evidence, that the Insurers have suffered the full amount of losses sought by the Government in its Restitution Request;

Based on these considerations, the Court will grant the Government's Restitution Request. See e.g. United States v. Danford, 435 F.3d 682, 689 (7th Cir. 2005) (affirming district court's determination that restitution award of $1,235,464 for insurer's loss appropriate, in spite of defendant's assertion that based on jury's ...

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